Can Ukrainians Sue Russia for War Damages?
Legislative solutions sought to help lift long-standing obstacles to pursuing the Russian government in national courts.
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Tuesday, 27 September ‘22
This week’s overview of key events and links to essential reading.
Human rights activists and the Ukrainian government have been exploring ways to implement a compensation scheme for victims of Russian aggression since 2014. Multiple lawsuits have been brought in national courts following the aftermath of the annexation of Crimea and the occupation of parts of eastern Ukraine, with the affected parties seeking compensation for damage inflicted by the war.
However, the lack of adequate means to protect their rights has resulted in most claims being neither satisfied nor enforced.
Victims of war have pursued two main litigation strategies. Some demanded compensation from the state budget under a special anti-terrorist legal mechanism, while others sued Russia directly for violating their property rights under the civil tort procedure.
The courts have tended to dismiss those claims due to legislative gaps, procedural hurdles or Russia’s immunity from lawsuits and enforcement.
Analysing the relevant case law in 2019, the Norwegian Refuge Council assessed that “none of the 146 cases concerning compensation/restitution for damaged or destroyed property in eastern Ukraine, instituted before the Ukrainian courts, has produced a decision which has been enforced”.
The Ukrainian Helsinki Human Rights Union raised similar concerns just three months before the full-scale invasion began in February 2022.
Since then, calls for legal reform have multiplied. Lawmakers acknowledge that victims of war lacked an effective remedy for restitution under the existing legal regime. One of the principal obstacles that the affected parties regularly faced was Russian sovereign immunity.
All foreign states in Ukraine, including Russia, enjoy immunity from being sued without their consent. This rule is enshrined in national law and recognised as a binding international custom. Well-suited for a time of peace, this absolute rule became unsuitable for wartime. Thus a draft law prescribing exceptions to sovereign immunity was registered in Ukraine in July 2022.
Under the new regime, a foreign state will not be entitled to immunity if it is sued for personal or property damage inflicted in Ukraine as a result of armed aggression condemned by the UN general assembly and Ukraine’s parliament.
The draft law also clarifies litigation procedures and facilitates rules for summoning foreign states, eliminating one of the most common tactics defendants employ in such cases.
The proposed law follows the approach earlier adopted by the supreme court. In an April decision, the country’s highest court departed from well-established jurisprudence and found it unnecessary to seek Russian consent for participation in the war-related lawsuit. This position was further expanded in a May decision. In both cases, the supreme court relied on the so-called “tort exception” to argue that Russia did not enjoy immunity from lawsuits brought by victims of its aggression.
The aggrieved parties have welcomed the legislative and judicial initiatives; for many, the national system remains the sole available venue where they can bring war damage claims and seek justice and fair compensation.
Ukrainian lawyers have been more cautious. According to legal expert Oleksandr Vodiannikov, the proposed approach is “morally valid but the reasoning advanced is weak even if viewed from the Ukrainian law’s perspective”.
Firstly, the Ukrainian constitution expressly prohibits retroactive force of law, except where it mitigates or nullifies responsibility. Thus, lawmakers’ good intentions to use the new law retroactively may backfire if the constitutional court were to find it unconstitutional. In such an event, cases concerning the damage inflicted before the law’s adoption (tens of billions of US dollars in monetary terms) would be excluded from the force of law, and victims’ efforts come to nothing.
Secondly, the supreme court's reasoning for lifting Russian immunity falters under scrutiny. The legal basis of the decisions was customary law, which is not a source of Ukrainian law; ECHR practice, which is not applicable for war damage claims; and discretional interpretation of international law by the highest court. If other judges follow the same approach, victims might receive externally progressive decisions with weak underlying reasoning, which may enforcement in the foreign jurisdictions where Russian property is located.
This should not imply that Russia must still enjoy sovereign immunity in Ukraine. There are viable alternatives that could help lift long-standing obstacles to pursuing Russia in national courts, in compliance with domestic and international laws.
In particular, Ukraine is entitled under the UN charter to self-defence from Russian acts of aggression. Both national and international experts concur that self-defence can be a lawful ground for national courts to avoid restrictions on sovereign immunity for the legitimate purpose of future reparations. Alternatively, Ukraine may enter into an international treaty with its allies in which they would agree on the inapplicability of sovereign immunity to Russia in certain instances. Such regulation may also be part of a larger initiative for the establishment of the International Claims Commissions for Ukraine.
Whether the Ukrainian parliament and judiciary will use those alternatives or stick with the already chosen legal solution, there is no way back to the absolute sovereign immunity of Russia in Ukraine. Victims of war may finally get a chance to successfully sue the aggressor state in their national courts.
Roman Hryshyn-Hryshchuk is a dispute resolution lawyer.
